Judge Lee S. Arian, Case Number: 22STCV07688, Date: 2024-01-30 Tentative Ruling

Tuesday, January 30, 2024

George Durley (“Decedent”) by and through his successors-in-interest Versie Durley, George Durley, Jr., and Michael Allen (collectively, “Plaintiffs”) filed a Complaint on March 3, 2022, against KND Real Estate 40, LLC dba Kindred Hospital Paramount and Kindred Healthcare Operating, LLC (collectively, “Defendants”). Plaintiffs alleged four causes of action in their Complaint: (1) elder abuse and neglect, (2) negligence based upon medical malpractice, (3) wrongful death, and (4) damages pursuant to CCP § 377.34. The Complaint was not served until a year after filing. Defendants now bring a Motion to Continue Trial. Plaintiffs filed no opposition.

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation):

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

The court may also consider the following factors: “(1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court 3.1332(d).)¿¿ ¿

Defendants request a trial continuance from the date of the current trial, May 23, 2024, to September 19, 2024, and put forth three reasons for this request. First, counsel for Defendants will be engaged in a separate trial beginning on May 21, 2024, that is expected to last two weeks. Second, the parties are engaged in mediation efforts; a continuance will allow the parties sufficient time to determine whether successful mediation is possible. Finally, discovery is not completed, and a continuance will allow all parties to accomplish any necessary remaining discovery.

Addressing Defendants’ first reason, CRC 3.1332(c)(3) permits a continuance when trial counsel is unavailable, as they are here. (See Declaration of Trial Counsel, ¶ 3.) Defendants’ second reason, the opportunity to engage in mediation, has the potential to resolve the issue without the need for a trial, saving the Court’s valuable resources in the process. Unfortunately, the reason is not particularly compelling here, where the parties have not indicated that they have engaged a mediator. Finally, CRC 3.1332(c)(6) permits a continuance where there is an excused inability to obtain essential discovery. Here, the parties have not completed discovery, and there is no evidence of dilatory tactics by either side, although it is not entirely clear to the Court why in almost a year the parties have been unable to complete discovery. That said, there appears to be no prejudice to any party if a continuance is granted; the non-moving parties have not claimed any. Under the circumstances, where the factors do not weigh heavily in favor of a continuance, and the Court is not persuaded that the parties have pursued discovery with diligence, the Court will grant a continuance, but not for the requested 120 days, but rather for 60 days. Given that the trial will now not be until the end of July, 2024, that will give the parties more than sufficient time to complete discovery, to the extent they really intend to do so, engage in mediation.

Accordingly, Defendants’ Motion to Continue Trial is GRANTED in part and denied in part. It is granted in that the trial and all statutory deadlines related to the trial date will be continued. It is denied in respect to the requested time of the continuance. Trial will be continued until FATD 7/23/24, and the statutory deadlines shall be tied to that date. The Final Status Conference shall be ______. Any further continuance request will be highly disfavored.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court